Citation Nr: 0600318
Decision Date: 01/06/06 Archive Date: 01/19/06
DOCKET NO. 04-22 086 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for the
residuals of a colectomy with resection of the ileum and
cecum, and an ileo-ascending colostomy.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. Johnston, Counsel
INTRODUCTION
The veteran had active military duty from June 1963 to
September 1966.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan, which granted the veteran an increased
evaluation from 0 to 10 percent for his service-connected
residuals of surgery to the bowel during service. The
veteran testified before the undersigned at a hearing
conducted at the RO in September 2005. The case is now ready
for appellate review.
FINDINGS OF FACT
1. All relevant evidence necessary for a fair and equitable
disposition of the issue on appeal has been requested or
obtained.
2. The residuals of the veteran's colectomy with resection
of the ileum and cecum and associated ileo-ascending
colostomy during service include constant slight or
occasional moderate fecal leakage, with moderate frequent
episodes of bowel disturbance and abdominal distress, and
moderate overall symptoms from resection of a portion of the
large intestine, but there is not competent evidence of
occasional involuntary bowel movements necessitating the
wearing of pads or diapers nor are there documented severe
residuals of irritable colon syndrome including severe
diarrhea or alternating diarrhea and constipation nor is
there evidence of anemia or inability to gain weight.
CONCLUSION OF LAW
The criteria for an increased evaluation from 10 to 20
percent for overall moderate symptoms of a resection of the
portion of the large intestine, but no higher, have been met.
38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.20, 4.113, 4.114,
Diagnostic Codes 7319, 7328, 7329, 7332 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Law and Regulations: VCAA and regulations implementing this
liberalizing legislation are applicable to the veteran's
claim. VCAA requires VA to notify claimants of the evidence
necessary to substantiate claims, and to make reasonable
efforts to assist claimants in obtaining such evidence.
The veteran was provided formal VCAA notice in June 2003,
prior to the issuance of the adverse rating decision which is
now on appeal from October 2003. This notification informed
the veteran of the evidence necessary to substantiate his
claim, the evidence he was responsible to submit, the
evidence VA would collect on his behalf, and advised he
submit any relevant evidence in his possession. During the
pendency of this appeal, the RO collected all records of the
veteran's treatment at various VA facilities. Records of the
veteran's award of Social Security benefits were collected
for review. The veteran did not report any private medical
treatment. The veteran was provided a VA examination which
is adequate for rating purposes. The veteran availed himself
of the opportunity of submitting lay statements in his
behalf, and he testified in his behalf before the undersigned
at a hearing at the RO in September 2005. The veteran was
provided the regulatory implementation of VCAA, and the laws
and regulations governing his claim for an increased
evaluation, and the reasons and bases for denying an
evaluation in excess of 10 percent in a statement of the case
issued by the RO in April 2004. The Board finds that VCAA is
satisfied in this appeal. 38 U.S.C.A. §§ 5102, 5103, 5103A,
5107; Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The Schedule for Rating Disabilities (Schedule) will be used
for evaluating the degree of disability in claims for
disability compensation. The provisions of the Schedule
represent the average impairment in earning capacity in civil
occupations resulting from those disabilities, as far as can
be determined. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Any
reasonable doubt regarding the degree of disability will be
resolved in favor of the claimant. 38 C.F.R. § 4.3. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability more nearly approximates the criteria required for
that rating, otherwise the lower rating will be assigned.
38 C.F.R. § 4.7. The basis of disability evaluations is the
ability of the body as a whole, or of a system or organ of
the body, to function under the ordinary conditions of daily
life including employment. 38 C.F.R. § 4.10.
When an unlisted condition is encountered, it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
38 C.F.R. § 4.20.
There are diseases of the digestive system, particularly
within the abdomen, which while differing in the sight of
pathology, produce a common disability picture characterized
in the main by varying degrees of abdominal distress or pain,
anemia and disturbance in nutrition. Consequently, certain
coexisting diseases in this area do not lend themselves to
distinct and separate disability evaluations without
violating the fundamental principal relating to pyramiding as
outlined at 38 C.F.R. § 4.14. 38 C.F.R. § 4.113.
Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331,
7342, and 7345 to 7348 inclusive will not be combined with
each other. A single evaluation will be assigned under the
diagnostic code which reflects the predominant disability
picture. 38 C.F.R. § 4.114.
Irritable colon syndrome (spastic colitis, mucous colitis,
etc.), which is mild with disturbance of bowel function with
occasional episodes of abdominal distress warrants a
noncompensable evaluation. Irritable colon syndrome which is
moderate with frequent episodes of bowel disturbance with
abdominal distress warrants a 10 percent evaluation.
Irritable colon syndrome which is severe with diarrhea, or
alternating diarrhea and constipation with more or less
constant abdominal distress warrants a 30 percent evaluation.
38 C.F.R. § 4.114, Diagnostic Code 7319.
Resection of the small intestine which is symptomatic with
diarrhea, anemia, and inability to gain weight warrants a 20
percent evaluation. With definite interference with
absorption and nutrition, manifested by impairment of health
objectively supported by examination findings including
definite weight loss warrants a 40 percent evaluation.
38 C.F.R. § 4.114, Diagnostic Code 7328.
Resection of the large intestine with slight symptoms
warrants a 10 percent evaluation, with moderate symptoms
warrants a 20 percent evaluation, and with severe symptoms,
objectively supported by examination findings warrants a
40 percent evaluation. 38 C.F.R. § 4.114, Diagnostic Code
7329.
Impairment of sphincter control of the rectum and anus
resulting in constant slight or occasional moderate leakage
warrants a 10 percent evaluation. With occasional
involuntary bowel movements necessitating the wearing of pads
warrants a 30 percent evaluation. 38 C.F.R. § 4.114,
Diagnostic Code 7332.
Analysis: During service in 1964, the veteran was admitted
for an appendectomy which was apparently performed without
adverse incident. Several days later, the veteran began
reporting intermittent abdominal cramping. The evening
before a subsequent admission, he developed a severe,
periumbilical crampy pain without radiation associated with
nausea and vomiting. X-ray studies revealed a pattern
consistent with small bowel obstruction. This obstruction
was felt secondary to regional enteritis (ileitis).
Additional X-ray studies revealed dilation of small bowel
loops. Attempts at resolving the obstruction without surgery
were unsuccessful and the veteran was transferred to an
operating room for a laparotomy where he was found to have a
large mass at the level of the distal ileum involving the
cecum. The bowel loops were densely coherent to one another
with fiber connective tissue and inasmuch as the loops could
not be separated and the obstruction remained, both the
distal ileum and cecum were resected (cut out) and an ileo-
ascending colostomy performed. The veteran had some
postoperative fever and other symptoms treated with
antibiotics and, following a high protein diet with
supplement of multivitamins, he rapidly gained weight and was
fully ambulatory and asymptomatic. He became afebrile on the
11th postoperative day and remained so until discharged. At
discharge, he had a good oral intake, bowel movements passing
three times per day, and had not been noted to have diarrhea
since surgery. He was discharged to light duty.
In January 1966, the veteran reported having loose bowel
movements averaging twice daily since surgery in 1964 but
with no weight loss. He had occasional sour stomach and a
bloated feeling at times.
At service separation, there were no noted abnormalities with
respect to the surgery provided the veteran during service.
The veteran did not file his initial claim for VA disability
compensation for the residuals of this surgery until 1993, 27
years after he was separated from service. Review of the
service medical records together with current VA treatment
records resulted in allowance of service connection for
status post "appendectomy with laparotomy" with an assigned
noncompensable evaluation in a September 1993 VA examination.
That rating decision also denied an associated claim for
service connection for multiple kidney stones as secondary to
the veteran's appendectomy with laparotomy because there was
an absence of any evidence showing a causal connection
between them. The veteran was notified of this decision and
he did not disagree or initiate an appeal.
A March 1994 VA general medical examination noted that the
veteran weighed 186 pounds, and noted his usual weight was
178 pounds. All laboratory studies performed were within
normal limits including the urine. In the intervening years
since service separation, the veteran was noted to have had
treatment for significant alcohol abuse, including episodes
of withdrawal seizures. This examination did not result in
any complaints being documented or findings attributable to
the veteran's appendectomy or laparotomy during service. The
examination report noted that the veteran had been approved
for Social Security disability benefits on the basis of his
alcoholism.
In October 1997, the veteran underwent a VA upper GI which
revealed a bleed due to esophagitis and gastric ulcer which
was attributable to alcohol abuse.
In May 2003, the veteran filed an application for an
increased rating. During the pendency of this appeal, he
submitted several statements from friends and family members
which collectively attested to observing the veteran have
gastrointestinal complaints attributable to surgery during
service and indicating that he routinely had to check to see
if he had soiled himself from fecal leakage. They wrote that
the veteran was required to maintain close proximity to
bathroom facilities and that his service-connected residuals
had interfered with his life and employment.
VA outpatient treatment records from June 2001 included the
veteran's complaint of having anal discharge on an almost
daily basis for the previous two years. He described
noticing a small amount or occasional greater amounts of
liquid stool which was passed spontaneously "every 3 to 4
months." At other times, he would have regular daily bowel
movements except when he had these episodes of small amounts
of incontinence, "which happened every 3 to 4 months." The
veteran recounted his surgery during service and said that he
did well except for having loose to watery stools twice
daily. He occasionally noticed some blood in his stools but
denied any actual hematochezia. He described "some
periumbilical discomfort." He denied "any nausea or
vomiting." He also reported past esophagitis and antral
ulcer related to alcohol abuse in 1997 when he had an upper
GI bleed. Examination resulted in a finding of a small
amount of stool incontinence and anal discharge. The veteran
was provided a colonoscopy as a result of his reports. This
colonoscopy performed the following month in July 2001 only
revealed the ileocolonic anastomosis without any
abnormalities other than internal hemorrhoids. No
hepatosplenomegaly was noted. It also was noted that the
veteran "denies any complaints." Again, the only abnormal
finding from this diagnostic procedure was internal
hemorrhoids.
In July 2002, the veteran was provided surgery for a right
inguinal hernia. This hernia had not stopped the veteran
from doing any of his usual activities, and treatment records
specifically note no change in bowel movement. Records
associated with the surgical procedure specifically noted "no
bowel or bladder problems."
In May 2003, the veteran was admitted to a VA medical center
for another alcohol detoxification treatment. This short
hospitalization was accompanied with significant daily
treatment records which generally noted that the veteran
responded well to treatment and there was no recurrence of
more severe symptoms of seizures or serious tremors which had
occurred in the past. It is noteworthy that detailed records
of this inpatient admission contain no complaints or findings
with respect to fecal leakage, chronic or intermittent
diarrhea or other significant abdominal pain or discomfort.
Although the veteran's previous appendectomy and partial
colectomy was documented, the only abdominal finding with
respect to this admission was an alcoholic gastritis.
In July 2003, the veteran was provided a VA examination in
conjunction with his current claim for increase. He reported
his history of surgery during service and having had loose
stools, increased gas formation and stomach upset thereafter.
He also reported "occasional leakage of stool at times." He
denied any constipation, bright red blood per rectum, melena,
low back pain, altered stool frequency, and usually had about
three bowel programs per day. He did not have feelings of
incomplete evacuation but did have occasional urgency. The
veteran reported occasional abdominal bloating which was
relieved with a bowel movement. There was no history of
colon cancer, Crohn's disease, ulcerative colitis,
diverticulitis or diverticulosis, ischemic disease of the
gastrointestinal tract or true pericystitis. Physical
examination revealed that the veteran weighed 195 pounds with
a maximum of 204 pounds in the past year. Abdominal
examination revealed multiple well-healed nontender scars.
There was no abdominal bloating upon examination, and there
were normal bowel sounds in all four quadrants which was
without compressive abdominal guarding, rebound tenderness,
percussive tenderness or organomegaly noted. The rectal area
revealed no hemorrhoids, anal fold tears, excoriations or
noted fistulas. The veteran had a normal nontender prostate
without nodules. He had a semi-solid stool upon examination
with a negative heme culture. Laboratory studies were all
essentially normal. The diagnosis from this examination was
"mild irritable bowel syndrome."
In advancing this appeal, the veteran submitted several
written statements in which he clearly admitted to abusing
alcohol historically. However, he specifically stated that
he had gone lengthy periods of time with little or no
alcohol, and that his symptoms attributable to his service-
connected surgeries were fairly consistent regardless of
alcohol intake or abstinence. He also reported that he had
made great efforts to properly treat his own symptoms through
use of proper diet and exercise.
In September 2005, the veteran testified at a hearing before
the undersigned. He again reported that he had made great
efforts in controlling his intake of liquids and diet and
exercise to minimize his adverse symptoms. He said that his
service-connected surgeries resulted in a daily aching pain
rather than sharp pain. He reported having fecal leakage on
a daily basis and that about 6 to 8 times per day he would
wipe himself but that he did not use and had not been
prescribed pads or adult protective garments. He reported
not having to get up many times at night for bowel movements.
He said that perhaps once every three months he would have a
greater amount of leakage where he would actually soil
himself. He reported being constipated perhaps once every
two years, which would be a great surprise given his ordinary
symptoms.
The veteran's service-connected disability was initially
characterized by the RO as appendectomy with laparotomy.
More recently, this disability was characterized as status-
post appendectomy with an ileo-ascending colostomy. Although
the veteran certainly underwent an appendectomy during
service, and while service connection in the initial
allowance includes the appendectomy, there are, in fact, no
disabling residuals identified as attributable to that
appendectomy during service or in any clinical evidence on
file. In an attempt to more accurately characterize the
veteran's disability at issue in this appeal, the Board has
recharacterized it as the residuals of a colectomy with
resection of the ileum and cecum, and an ileo-ascending
colostomy. In this regard, it is noted that the ileum is
essentially at the end of the small intestine, and the cecum
is at the beginning of the large intestine. Both were
resected during service. Of course, the residuals of an
appendectomy remains service connected.
Since the time the RO initially granted service connection
for the veteran's postoperative residuals of a colectomy with
resection of the ileum and cecum with ileo-ascending
colostomy, this disability has been evaluated in accordance
with Diagnostic Code 7319 for irritable colon syndrome. This
diagnostic code is certainly applicable and certainly
provides symptoms consistent with the veteran's clinical
history. The veteran was mostly recently provided an
increased evaluation from 0 to 10 percent under this
diagnostic code, the 10 percent evaluation being found to be
consistent with overall moderate symptoms with frequent
episodes of bowel disturbance with abdominal distress.
The RO denied the next higher 30 percent evaluation under
this diagnostic code, and the Board concurs that a 30 percent
evaluation is not warranted for overall severe symptoms
including severe diarrhea, or alternating diarrhea and
constipation with more or less constant abdominal distress.
A careful review of all of the clinical evidence on file
fails to reveal objective documentation that the veteran has
ever manifested severe overall symptoms of irritable colon
syndrome, including either severe diarrhea, or alternating
diarrhea and constipation with more or less constant
abdominal distress. Although the veteran has consistently
reported loose stools, and having to check himself and/or
wipe himself from some anal leakage routinely every day,
these facts do not equate to severe overall symptoms
including severe diarrhea. The veteran has never been shown
to have alternating diarrhea and constipation, the veteran
himself reporting during his hearing before the undersigned
that he might have constipation once every several years.
However, because portions of both the veteran's large and
small intestines were surgically removed during service, and
because there is some anal leakage involved as
symptomatology, the Board feels that it is also appropriate
to review the veteran's reported symptoms in accordance with
Diagnostic Codes 7328 for resection of small intestine, 7329
for resection of large intestine, and 7332 for impairment of
sphincter control.
A 20 percent evaluation for resection of small intestine
requires symptoms of diarrhea, anemia and inability to gain
weight. Although the veteran does have some diarrhea, there
is a complete absence of competent evidence demonstrating
either chronic or even occasional anemia or an inability to
gain weight. The next higher 20 percent evaluation for
resection of the small intestine is not warranted by the
evidence on file under Diagnostic Code 7328.
Under impairment of sphincter control, the currently assigned
10 percent evaluation most fairly represents the 10 percent
criteria under this diagnostic code including constant slight
or occasional moderate leakage. The next higher 30 percent
evaluation is not warranted because there is an absence of
objective evidence showing occasional involuntary bowel
movements necessitating the wearing of adult pads or other
protective materials. Again, although the veteran reports
that he has routine daily episodes of minor leakage, it is
noteworthy that no objective clinical evidence on file
documents this symptom including multiple reports of the
veteran's hospitalization, and outpatient treatment records.
The veteran does not wear pads or other adult protective
materials and none are shown to have ever been clinically
required.
Finally, with resection of the large intestine, a 10 percent
evaluation is warranted for slight symptoms and a 20 percent
is warranted for moderate symptoms. Here the Board feels
that a 20 percent evaluation for moderate overall symptoms is
in fact warranted. These moderate symptoms include routine
minor amounts of fecal leakage, and chronic stomach upset
without severe symptoms of irritable colon syndrome and
without severe symptoms of resection of large intestine which
are required to be "objectively supported by examination
findings."
The most recent competent clinical VA examination of the
veteran in July 2003 simply noted that the veteran had "mild
irritable bowel syndrome." Nonetheless, the veteran has been
evaluated as moderately impaired under Diagnostic Code 7319
for irritable colon syndrome, and moderate symptoms for
resection of the large intestine warrants a higher evaluation
of 20 percent under Diagnostic Code 7329. A portion of the
veteran's large intestine, the cecum, was removed during
service and the veteran is clearly shown to have an overall
moderate degree of symptoms. Accordingly, an increased
evaluation to 20 percent is warranted at all times during the
pendency of this appeal under Diagnostic Code 7329. No
higher evaluation is warranted, however, under any of the
applicable diagnostic codes for evaluating the veteran's
service-connected colectomy with resection of the ileum and
cecum, with associated ileo-ascending colostomy.
ORDER
Entitlement to an evaluation of 20 percent for colectomy with
resection of the ileum and cecum and associated ileo-
ascending colostomy is granted.
____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs